Through a series of FAQs regarding the processes for the destruction of beer and a recent circular regarding trade practice policies for product returns, credit terms, gift cards, hand sanitizer and manufacturers and distributors donating to retailer charities. The changes in policy/application are effective for issues from March 1, 2020 through September 30, 2020 and could be extended beyond that time period if the TTB deems them appropriate.

Regarding the trade practice policies during the COVID-19 epidemic:

Newly released Circular 2020-3 reviews current tied-house policies and worries over commercial bribery in light of the current catastrophe befalling the beverage and hospitality industries with massive unemployment and a future anticipated to involve mandated social distancing, decreased occupancy, and large amounts of on-premise returns.

Returns are allowed: The circular reminds distillers, wholesalers, brewers, wineries and bars that returns to manufacturers by wholesalers or retailers for cash or credit are presently allowed (though not mandated) provided the sale was not made with the privilege of return.

Credit rules are extended: The present alcohol regulations 27 CFR 6.21(f) and 6.65 that discuss credit beyond 30 days being a means to induce are augmented and 120 days is currently allowed.

Donations by gift card are allowed: Gift cards purchased by brewers, distillers and wineries and given to people in need are not violations provided they aren’t given to wholesalers or retailers or their employees and are not tied to specific alcohol beverage retailers, retailer groups or restaurants.

Producers and wholesalers can donate to charities supporting retailer employees: Supporting and donating to charities that support alcohol retailers would normally be considered an inducement and violation of tied-house rules, but given the vast majority of programs to benefit retailers and retailer employees laid-off on account of mandated state closures and economic issues created by the virus, the TTB will not initiate investigations of donations “provided they are not conditioned on purchases of, or shelf space for, the industry member’s products.”

You can give away hand-sanitizer: It is not improper to give away free hand-sanitizer and neither is it improper to co-package hand-sanitizer for consumer sales.

You can read the full circular at the link above.

Regarding the destruction of beer during the COVID-19 epidemic:

We’ve provided the beer FAQ below as craft brewers will find it informative and instructive for beer they cannot sell or beer they are buying back. Briefly:

Taxes can be refunded or forgiven for beer a brewer destroys.

The advanced notice requirement to the TTB for the off-premises destruction of beer is waived (no 12-day waiting period).

For those wondering – yes craft brewers can transfer beer to craft distillers for use as distilling materials (not just hand sanitizer) and taxes can get refunded on that beer.

Wholesalers can destroy beer for craft brewers provided they keep proper records and provide sworn statements and proof of destruction.

Craft brewers are encouraged to submit requests electronically for refund or relief from taxes on destroyed/distilled beer.

Here is the full FAQ regarding the destruction of beer that craft brewers should familiarize themselves with:

COV-B1: Because of COVID-19, I have unmerchantable beer in the marketplace. Can that taxpaid or tax-determined beer be destroyed without returning it to my brewery and can I be relieved of the tax on that beer?

Yes, beer in the marketplace may be destroyed off premises, without first returning it to the brewer’s premises, and the brewer may be relieved of or refunded the tax.

The tax paid by a brewer on beer produced in the United States and destroyed off premises may be refunded or credited to the brewer, without interest (see 26 U.S.C. 5056(a); 27 CFR 25.224). If the tax has not been paid, the brewer may be relieved of liability for the tax (see 26 U.S.C. 5056(a); 27 CFR 25.224).

For information about how to be relieved of or refunded the tax on taxpaid beer that is transferred to a DSP, see COV-B6 below.

COV-B2: Do I have to notify TTB before I destroy taxpaid beer off brewery premises as described in COV-B1 above?

Current regulations require that brewers destroying taxpaid beer off brewery premises submit to TTB a notice of intent (NOI) containing specific information about the destruction at least 12 days prior to the destruction (see 27 CFR 25.222).

However, due to the business disruptions brewers are facing during COVID-19, TTB is waiving the requirement that brewers submit NOIs to TTB to destroy taxpaid beer in the marketplace, thus eliminating the 12-day waiting period under the regulation. Under this waiver, in lieu of submitting the NOI, brewers must maintain records showing the information required to be submitted on the NOI (see 27 CFR 25.222(c)), including a serial number for each destruction that is then identified by reference on any claims or adjustments, and must include the information required on NOIs and proof of destruction when submitting a claim to TTB for refund of tax (see COV-B6 below).

We are providing this waiver through July 1, 2020, under our authority at 27 CFR 25.52(b), and we may consider extending it as needed to address COVID-19-related circumstances.

COV-B3: Because of COVID-19, I have beer on hand at my brewery premises that I am not going to be able to sell. Can beer on my premises be transferred to a distilled spirits plant (DSP) for use in the production of hand sanitizer without payment of tax?

Yes, under existing law, brewers may transfer beer without payment of tax from the brewery to a DSP for use as distilling material (see IRC provision 26 U.S.C. 5053(f)), which DSPs may subsequently use in the production of hand sanitizer. If applicable, such transfers also may be made by pipeline from the brewery to a DSP under current regulations (see 27 CFR 25.201).

Brewers transferring beer to a DSP must record the removal in their daily records, report it on their Brewer’s Report of Operations, and maintain supporting documents, such as a record of transfer to the DSP, under the requirements of Subpart U—Records and Reports.

COV-B4: Because of COVID-19, some of my beer in the marketplace has reached or exceeded its freshness date. Can that taxpaid or tax-determined beer be transferred to a DSP for use in the production of hand sanitizer and can I be relieved of the tax for beer transferred to a DSP?

Yes, it is possible for brewers to transfer beer in the marketplace to a DSP and be relieved of or refunded tax.

Beer that is received at a DSP for use as distilling material is considered, for purposes of the TTB regulatory requirements, to be beer destroyed off brewery premises. The tax paid by a brewer on beer produced in the United States and received at a distilled spirits plant may be refunded or credited to the brewer, without interest (see 26 U.S.C. 5056(a) and (c); 27 CFR 25.224). If the tax has not been paid, the brewer may be relieved of liability for the tax (see 26 U.S.C. 5056(a) and (c); 27 CFR 25.224).

For information about how to be relieved of or refunded the tax on taxpaid beer that is transferred to a DSP, see COV-B6 below.

COV-B5: Do I have to notify TTB before I destroy taxpaid beer off brewery premises as described in COV-B4 above?

In cases where beer is considered destroyed off brewery premises because it is used by a DSP as distilling material, TTB is waiving the requirement under 27 CFR 25.222 to submit to TTB an NOI under the same terms as described in COV-B2 above. Specifically, TTB is waiving the requirement that brewers submit NOIs to TTB to destroy taxpaid beer in the marketplace, which also alleviates the 12-day waiting period described in this regulation. Under this waiver, in lieu of submitting the NOI, brewers must maintain records showing the information typically required to be submitted on the NOI (see 27 CFR 25.222(c)), including a serial number for each destruction that is then identified by reference on any claims or adjustments.

We are providing this waiver through July 1, 2020, under our authority at 27 CFR 25.52(b), and we may consider extending it as needed to address COVID-19-related circumstances.

COV-B6: What must I do to be relieved of or refunded the tax on taxpaid beer that is destroyed off brewery premises?

Under current regulations (see Subpart T of 27 CFR part 25), brewers who wish to recoup the tax they paid on beer that is destroyed may file a claim for refund. Brewers must submit to TTB a completed claim on TTB Form 5620.8 with all of the information and supporting documentation required under 27 CFR 25.283(a). If the brewer does not submit the NOI, TTB is requiring under 27 CFR 25.283(d) that brewers submit the information required on NOIs under 27 CFR 25.222 and proof of destruction, through commercial records or statements under penalties of perjury.

If filing a claim, we strongly encourage brewers to send claims electronically by submitting a completed claim on TTB Form 5620.8 and all supporting documentation through TTB’s online claims submission process. Due to COVID-19, to ensure the safety and well-being of our employees, and in accordance with federal, state, and local guidelines, we will be very limited in our ability to receive and process paper submissions sent to our office locations, which could result in significant delays in processing claims submitted by mail.

Alternatively, in lieu of filing a claim for refund of tax, a brewer may instead make an adjustment (without interest) to the next excise tax return on TTB Form 5000.24 under current regulations (see 27 CFR 25.224(b) and 25.284).

COV-B7: I am a brewer that produced and paid taxes on beer that is in kegs in the marketplace, and I would like to destroy that beer without returning it to my brewery. To save costs, can the beer be removed from the kegs and transferred to a DSP or otherwise destroyed by a wholesaler on behalf of my brewery?

Yes, TTB regulations do not prohibit a brewer from having a wholesaler destroy beer on a brewer’s behalf by, for example, removing beer from kegs and transferring that beer to a DSP for destruction. Note that brewers must support any claim for refund or adjustment of tax for all beer destroyed, including beer destroyed on its behalf.

Brewers must maintain records showing the same information required to be submitted on the notice of intent to destroy (see 27 CFR 25.222(c)), including a serial number for each destruction that is then identified by reference on any claims or adjustments. Claims or adjustments on tax returns must reference the serial number for the destruction subject to the claim or adjustment, as the case may be (see COV-B6).

In cases where wholesalers arrange for the destruction of beer on the brewer’s behalf, wholesaler records, such as commercial records, statements under penalties of perjury, and other evidence of destruction that the wholesaler maintains, are adequate records of destruction.

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Ashley Brandt

Hi there! I’m happy you’re here. My name is Ashley Brandt and I’m an attorney in Chicago representing clients in the Food and Beverage, Advertising, Media, and Real Estate industries.
A while back I kept getting calls and questions from industry professionals and attorneys looking for advice and information on a fun and unique area of law that I’m lucky enough to practice in.
These calls represented a serious lack of, and need for, some answers, news, and information on the legal aspects of marketing and media.
I've got this deep seeded belief that information should be readily available and that the greatest benefit from the information age is open access to knowledge... so ... this blog seemed like the best way to accomplish that.
I enjoy being an attorney and it’s given me some amazing opportunities, wonderful experiences, and an appreciation and love for this work.
I live in Chicago and work at an exceptional law firm, Goldstein & McClintock, with some truly brilliant people.
Feel free to contact me at any time with any issues, comments, concerns… frankly, after reading this far, I hope you take the time to at least let me know what you think about the blog and how I can make it a better resource.